A Family Doctor in solo private practice; I may be going the way of the dinosaur, but I'm not dead yet.

Monday, November 20, 2006

Joining the Crowd

Everyoneelse has been talking about their lawsuits lately, mostly with angst and dismay (which is totally appropriate.) Fingers and Tubes, who has been giving us a rundown on his previous suits, expresses glee over his attorney's brutal (and totally deserved) treatment of the plaintiff in his #5 suit. It reminded me of my favorite moment in my own malpractice trial:

I was sued in 1997 for a failure to diagnose a base of tongue cancer in a 52-year-old non-smoker/non-drinker who presented with a small lymph node in her neck. Suffice it to say I did not breach the standard of care (lawyer-speak for I didn't do anything wrong) and the patient did not actually suffer any injury. (The treatment she received was exactly the same as it would have been if I had referred her five months earlier, when I had first seen her.)

The case dragged out for seven years, finally going to trial in 2004. The delay didn't bother me, because the longer it went on, the longer she was free of disease and the less impressive her claims were to a jury. The trial wasn't nearly as nerve-wracking as you might think, given how bogus her claims were. Having "right" on your side really does count for more than you'd think when push comes to shove in front of a jury.

I actually wrote about it at the time, mainly as a way to share it more efficiently with my family, so if anyone's interested in a more complete blow-by-blow, email me and we'll see what we can do. But just to share the fun part that F&T reminded me about:

The patient was a terrible witness, but her husband was worse. (Part of the suit was his suing for "Loss of Consortium", which means that because of her illness -- as caused by my alleged negligence -- he was unable to enjoy the "benefits" of being her husband.) In his deposition he had said that yes, they still were able to do the crafts and other things they had done together before the cancer diagnosis and treatment. But on the witness stand, in front of the jury, he said that no, they couldn't do those things anymore. On cross examination, my lawyer took a copy of his deposition up to him on he witness stand and made him read what he had said before (which was the opposite of what he'd just said.) "So which is it, Sir," asked my lawyer. It was great.

Then there was the economics expert, the plaintiff's witness who was supposed to explain to the jury why this high school drop-out deserved nearly a million dollars in lost wages and such because of my negligence. He was the most entertaining part of the trial. At one point, my lawyer wanted him to say that the patient had never had a doctor's note saying that she couldn't work (which she hadn't) but he prefaced his question by asking rhetorically, "You know when you were absent from school, and you needed a doctor's note to go back?" The economist clearly wasn't sure what he was getting at, and, as a professional witness, knew that he should never admit anything when he wasn't sure what a lawyer was getting at. The whole courtroom waited in silence as he tried to figure out how not to answer the question. His eventual answer cracked everyone up -- judge, jury, lawyers and me -- when he said pompously, "I was never absent."

4 Comments:

I've never been on a witness stand in a malpractice case, nor have I sat through one. Since it's as much a part of being a physician as taking boards, I sort of wish I had. I like it that your experience was one at which you can look back with humor.

The plaintiff's lawyer must have been incompentent not to have prepped the witness (the plaintiff's husband) to emphasize that his testimony on the stand has to be consistent with his deposition. Nothing shoots down a witness faster than major inconsistencies between the deposition and his answers given on the witness stand. Lawyers just love to ask the question, "Were you mistaken then or are you mistaken now?" (meaning, in reality, "Were you lying then or are you lying now?")

That's exactly the question my attorney had a wonderful time asking. It was a tossup between plaintiff's attorney's incompetence and the husband's stupidity. That wasn't even the worst of his (the husband's) blunders, just the easiest to blog briefly about.